Prisons in the United States

14 Congressional Digest n www.CongressionalDigest.com n January 2019

“Rather than

allowing the

cycle of crime to

continue, this

legislation takes a

practical, intelligent

approach to

rehabilitation.”

Continued on page 16

The Pros of Legislation to Reform

Should Congress Pass the FIRST STEP Act to Reform the Nation’s Prison and Sentencing Laws? Honorable Bob Goodlatte United States Representative, Virginia, Republican

Representative Goodlatte, of the Sixth District of Virginia, was first elected to the U.S. House of Representatives in 1992. He was the District Director for then-Representa- tive Caldwell Butler (VA-R) from 1977 to 1979 and a practicing attorney from 1979 to 1992. He chairs the Judiciary Committee and also sits on the Agriculture Committee. The following is from the May 22, 2018, House floor debate on H.R. 5682, the FIRST STEP (Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person) Act.

I rise in strong support of H.R. 5682, the FIRST STEP Act. The bipartisan bill before us is a meaningful, historic criminal justice reform measure. The FIRST STEP Act places a new focus on rehabilitation. While we recognize criminal behavior needs to be punished and criminals need to be incarcerated, we must also acknowledge that our prison population needs to be rehabilitated to the greatest extent practicable.

The bill establishes a risk and needs assessment as the basis of both an effective recidivism reduction program and an efficient and effective Federal prison system. The FIRST STEP Act will incentivize prisoners to participate in evidence-based recidivism reduction programs, productive activities, and jobs that will actually reduce their risk of recidivism.

We know that over 90 percent of all prisoners within the Bureau of Prisons will be released someday. That is an indisputable fact. We also know that without programming and intervention, which can train prisoners to be better citizens, not better criminals, prisoners are more likely to recidivate.

Rather than allowing the cycle of crime to continue, this legislation takes a practical, intelligent approach to rehabilitation. By using a focused approach for each prisoner, we can lower the risk of recidivism. That is what H.R. 5682 does. Fewer recidivists means fewer prisoners in the future. It means greater savings to the American taxpayer. More importantly, it means safer communities, fewer crimes, and, of course, fewer victims. It also means greater opportunities for people once they leave prison.

This bill is important because when prisoners who have received intervention and rehabilitation are released, they are less likely to commit crimes. When that happens, our streets are safer and innocent civilians are less likely to be victimized. Rehabilitated prisoners are more likely to leave the life of crime behind, become productive members of society, and contribute to their communities. If that isn’t meaningful, I don’t know what is.

15Congressional Digest n www.CongressionalDigest.com n January 2019

“Despite the bill’s

good intentions,

the new incentive

system for pre-

release custody

credits could

exacerbate racial

biases . . .”

Continued on page 17

and Cons the Criminal Justice System

Should Congress Pass the FIRST STEP Act to Reform the Nation’s Prison and Sentencing Laws?

Honorable Jerrold Nadler United States Representative, New York, Democrat

Representative Nadler, of the Eighth District of New York, was first elected to the U.S. House of Representatives in 1992. He served in the New York Assembly from 1976 to 1992. He is the Ranking Minority Member of the Judiciary Committee and also sits on the Transportation and Infrastructure Committee. The following is from the May 22, 2018, House floor debate on H.R. 5682, the FIRST STEP (Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person) Act.

I claim the time in opposition to H.R. 5682, the FIRST STEP Act. On principle, I cannot support legislation which fails to address the larger issue of sentencing reform, and, though this bill makes some modest improvements in areas related to our prisons, actually, it does more harm by cementing into our system new areas of racial biases and disadvantage that make worse a criminal justice system desperately in need of reform.

Despite the bill’s good intentions, the new incentive system for pre-release custody credits could exacerbate racial biases and, unlike previous criminal justice efforts, is not balanced with the necessary reforms to our Federal sentencing system. As Monday’s New York Times editorial observed, “A partial bill could end up being worse than nothing.”

The bill excludes large categories of inmates, based on convictions for various offenses and on immigration status, from being eligible for the pre-release custody incentives established by the bill.

Second, certain prisoners who are eligible to participate in the incentive system and who successfully participate in recidivism reduction programs would face being denied early entry to pre-release custody if such inmates are judged to have a higher than low recidivism risk under the new system. It would be unfair to deny these prisoners what they have earned, and it is counterproductive for all of us to, in effect, create a disincentive for prisoners who most need recidivism reduction programming from engaging in it.

Third, the combination of these factors, implemented through a problematic risk assessment tool, could operate to exacerbate racial and socioeconomic disparities al- ready present in the criminal justice system. As the Leadership Conference on Civil and Human Rights, the ACLU [American Civil Liberties Union], the NAACP, the National Immigration Law Center, and dozens of other advocacy groups warn, “the exclusions could … have a disparate impact on racial minorities.”

I want to acknowledge the tremendous work of my colleagues on the Judiciary Committee — Representatives [Hakeem] Jeffries [NY-D], [Cedric] Richmond [LA-D], and [Karen] Bass [CA-D] particularly — for their efforts to improve the legislation.

16 Congressional Digest n www.CongressionalDigest.com n January 2019

Goodlatte, continued from page 14

Continued on page 18

“Voting against

this meaningful

and important bill

is a disservice to

those men and

women currently

incarcerated and

their families.”

I know there are some in this body who are opposing this legislation because it does not include sentencing reform. I support sentencing reform and have worked with my colleagues to find common ground on that issue. However, we should not let this opportunity pass by. The vast majority of Members of this House agree that this legislation is needed. Let us not linger any longer. Let us move this important and meaningful bill today.

Just look at the bipartisan support from outside interest groups that the FIRST STEP Act has received. Numerous organizations — almost too many to list in the allotted time we have — on both the left and the right have enthusiastically endorsed this bill.

I urge my colleagues on the other side of the aisle to not oppose this very important piece of legislation before us today. It appears their opposition to the legislation is based upon what is not in the legislation rather than what is actually in it. I don’t believe there is a single provision in the bill that they oppose. In fact, many of the provisions in this bill are there because they specifically asked for them.

For example, Democrats asked for a fix to the way the Bureau of Prisons calculates good time credit. We made changes to clarify congressional intent on that section. They also asked for language on the risk assessments to ensure that dynamic factors were used to evaluate a prisoner’s risk of recidivating. That request was honored. Various pilot programs and a prohibition of shackling pregnant inmates were also placed in the legislation at the request of Democrats. Good requests, good changes, and these are only a few of the many requests that were honored.

Voting against this meaningful and important bill is a disservice to those men and women currently incarcerated and their families. It is a disservice to those great men and women who work in our Bureau of Prisons, and it is a disservice to the American people. The vast majority of those incarcerated are going to get out one day. Let’s make sure they have the tools and the resources to successfully reenter society. H.R. 5682 does just that.

Honorable Bobby Scott United States Representative, Virginia, Democrat

Representative Scott, of the Third District of Virginia, was first elected to the U.S. House of Representatives in 1992. He served in the Virginia House of Delegates from 1977 to 1982 and in the Virginia Senate from 1983 to 1992. He is the Ranking Minority Member of the Education and the Workforce Committee. The following is from the May 22, 2018, House floor debate on H.R. 5682, the FIRST STEP Act.

Historically, the United States of America has been plagued with serious, fundamental problems within our criminal justice system. For far too long, policymakers have cho- sen to play politics and disapprove of commonsense policy that is specifically geared towards reducing crime by instead enacting so-called “tough on crime” slogans and soundbites, such as “three strikes and you’re out,” “mandatory minimum sentencing,” and even rhymes such as, “you do the adult crime, you do the adult time.”

17Congressional Digest n www.CongressionalDigest.com n January 2019

Nadler, continued from page 15

Continued on page 19

“. . . it is clear that

prison reform alone

will not ameliorate

the crisis of mass

incarceration

unless we address

the principal cause

of the problem —

unjust sentencing

laws.”

I wholeheartedly support certain provisions in the current version of the bill, such as expanding time credits for good behavior, banning the shackling of women prisoners, and enhanced compassionate relief. But, unfortunately, these good provisions do not outweigh the potentially harmful provisions contained elsewhere in the bill. Perhaps more importantly, it is clear that prison reform alone will not ameliorate the crisis of mass incarceration unless we address the principal cause of the problem — unjust sentencing laws.

As former Attorney General Eric Holder [in the Obama Administration] writes in today’s Washington Post, “To reform America’s prisons, we must change the laws that send people to them in the first place. Anything less represents a failure of leadership.”

It is unfortunate that after waiting nearly one and one-half years to take up the issue of criminal justice reform, the majority was unwilling to subject H.R. 5682 to a single legislative hearing or even bother to obtain a CBO [Congressional Budget Office] score so we could understand its impact.

I also do not believe we can simply accept as a reason not to change our sentenc- ing laws opposition to sentencing reform by a Trump Administration that changes its legislative positions on a near daily basis and that has already done so much to weaken and undermine the criminal justice system. Nor do I believe more balanced reform is not viable when Senator Chuck Grassley [IA-R], the chairman of the Senate Judiciary Committee, told us, “For any criminal justice system proposal to win approval in the Senate, it must include … sentencing reforms.”

Although I oppose this legislation, I remain fully committed to achieving balanced reform as part of an effort to make our criminal justice system more just and our con- stituents more safe. But I do not believe that passing this bill today would contribute to that goal. I therefore urge an opposition vote.

Honorable Diana DeGette United States Representative, Colorado, Democrat

Representative DeGette, of the First District of Colorado, was first elected to the U.S. House of Representatives in 1996. She served in the Colorado House of Representatives from 1992 to 1996, where she was Minority Leader from 1994 to 1995. She sits on the Energy and Commerce Committee. The following is from the May 22, 2018, House floor debate on H.R. 5682, the FIRST STEP Act.

I rise today in opposition of H.R. 5682, the FIRST STEP Act. While I support several provisions in the legislation, including prohibiting shackling

of pregnant inmates, requiring that individuals be incarcerated closer to their families, and clarifying good time calculations, I cannot support other provisions of the legislation.

I strongly believe the House should be working to ensure that once convicted in- dividuals have paid their debt to society, they have the skills and support to reintegrate into society, but this bill puts in place too many barriers to that goal.

The bill excludes undocumented individuals, including those who remained in the United States longer than authorized, from the recidivism reduction programming.

18 Congressional Digest n www.CongressionalDigest.com n January 2019

Scott, continued from page 16

Continued on page 20

“I expect that

public safety will be

enhanced by this

bill, because more

people will receive

programming

to reduce their

likelihood to

commit future

crimes.”.

These policies may sound appealing, but their impact ranges from a negligible reduction in crime to an actual increase in crime.

Turning to the bill we are debating today, I recognize that the FIRST STEP Act includes a fix to the calculation of good time credit, which I have sought for many years. Calculating good time credit as Congress had originally intended is a serious improvement made by this bill.

This bill also improves the auditing process for enforcing the Prison Rape Elim- ination Act to protect prisoners from sexual assault. It places prohibitions on shack- ling pregnant and post-partum women. The bill expands the use and transparency of compassionate release for terminally ill prisoners. It also requires the Federal Bureau of Prisons to house prisoners closer to their primary residence, so they can maintain ties to their family and community. And there is a significant investment in programs designed to reduce recidivism.

But process is essential to crafting an effective bill. There were no hearings on this bill. Nor has a CBO [Congressional Budget Office] score been done. Nor has a prison impact analysis been prepared. And it is obvious that experts had little to do with drafting the bill. As a result of this process, there are several problems with the bill.

First, the version of the bill we are voting on today is unnecessarily complicated by the use of a risk assessment tool. I have reached out to experts in the field of prison reform, and I have not found anyone who will say that risk assessment tools should be used to determine which prisoners can use time credits to gain early release from pris- on. Instead, they suggest that simply increasing programming for everyone will reduce recidivism and the complicated risk assessments are unnecessary and will stand in the way of reducing recidivism for many prisoners. The risk assessment process may also exacerbate existing racial disparities in the Federal prison system.

Second, experts have raised serious concerns about excluding groups of prisoners from this program who we know will be released from prison and therefore should be involved in the program.

Third, there are questions of cost and funding. The Bureau of Prisons has cut con- tracts with halfway houses and terminated 6,000 correctional officers. This bill cannot achieve its goals without an adequately staffed prison system, as well as sufficient space at halfway houses.

Even in the absence of hearings and experts, we can see that some of the opposi- tion to this bill is almost comical, because it is lodged by advocates who support other legislation that carries the same provisions that are either similar to or worse than what they complain about in the FIRST STEP Act.

Others oppose the bill because it does not include sentencing reform and therefore does not address mass incarceration. Unfortunately, the bill those advocates hold up as “sentencing reform” fails to make any meaningful reduction in mass incarceration and may, in fact, add to mass incarceration.

It is in the context of this absurd process that we have to vote on this legislation. Unfortunately, without the appropriate analysis, we can only guess about its impact. Based on that guess, it is my determination that no prisoner will be worse off, but many may be significantly better off, under the FIRST STEP Act. I expect that public safety will be enhanced by this bill, because more people will receive programming to reduce their likelihood to commit future crimes.

Although this is a shameful process, I will therefore support the bill.

19Congressional Digest n www.CongressionalDigest.com n January 2019

DeGette, continued from page 17

Continued on page 21

“I am very

concerned about

language in the

bill that excludes

immigrants from

being eligible for

time credits.”

Worse, the bill also excludes some lawful permanent residents from the program and could trigger their removal. The bill also excludes those who have been convicted of drug crimes, including marijuana-related convictions.

Given that immigrant and minority communities make up a disproportionate share of immigration and drug-related offenders in the criminal justice system, these exclu- sions will, by their very nature, exclude those who most need the benefits of the bill.

Finally, any conversation about reducing recidivism must include sentencing re- form that would keep low-risk nonviolent offenders out of prison in the first place and address our draconian Federal mandatory minimum laws. We can do better, and we must do better if we are to address this issue.

Honorable Pramila Jayapal United States Representative, Washington, Democrat

Representative Jayapal, of the Seventh District of Washington, was elected to the U.S. House of Representatives in 2016. She served in the Washington Senate from 2015 to 2016. She sits on the Judiciary Committee and the Budget Committee, where she is the Vice Ranking Member. The following is from the May 22, 2018, House floor debate on H.R. 5682, the FIRST STEP (Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person) Act.

There is one thing everybody agrees on, and that is that it is past time that we face the institutionalized racial inequity that is built into every single step of our mass incar- ceration system.

We know that mass incarceration disproportionately affects people of color and that, today, women in prison are, sadly, the fastest growing demographic, frequently caught up with the arrests of their partners and struggling with mental health and addiction.

This bill does take important steps forward, and I want to say that it is a very good faith effort on the part of the bill’s two sponsors: my friend Hakeem Jeffries [NY-D] and Representative Doug Collins [GA-R].

Unfortunately, I still am not going to be able to support the bill because I have serious concerns about how the bill creates, develops, and implements a new risk assessment system on a very quick timeline by someone who, frankly, has spent his career opposing criminal justice reforms and, in fact, has fought attempts to advance racial justice, and that is Attorney General [Jeff] Sessions. This is especially concerning given that research shows us that risk assessments produce racial disparities. And this bill does not address sentencing reform, which is an issue that has bipartisan support and is the crux of the problem today.

In addition, I am very concerned about language in the bill that excludes immi- grants from being eligible for time credits. The bill excludes longtime, legal permanent residents, and green card holders, who may have committed the exact same crimes as others and may be eligible for relief under U.S. law. If we are making redemption available, shouldn’t it be available for everyone, regardless of immigration status, for the same set of crimes? Moreover, continued incarceration of these people simply

20 Congressional Digest n www.CongressionalDigest.com n January 2019

Pros, continued from page 18

“. . . we are

taking a first step

toward solutions,

a first step toward

hope, a first step

toward making a

difference . . .”

Honorable Doug Collins United States Representative, Georgia, Republican Representative Collins, of the Ninth District of Georgia, was first elected to the U.S. House of Representatives in 2012. He served in the Georgia House of Representatives from 2007 to 2013. He sits on the following committees: Rules, Judiciary, and Oversight and Government Reform. The following is from the May 22, 2018, House floor debate on H.R. 5682, the FIRST STEP Act.

I like parts of this legislation; but it doesn’t go far enough; if it just did a little more — as if this place produced perfect results every time and we just want to wait. But I also would ask those who choose to vote “no” today, is it okay to make progress on many other things but on this one say no? Say no to a family who has a family member in prison who could get treatment and get help? And when they come home — which over 90 percent of all prisoners in this country do, they come home — is it okay to say to those folks, no, we are not going to provide that for your family member; we are not going to provide extra treatment so that they can get help with addiction or work problems or anger management or skills deficits or education deficits?

No, it is not. Is it okay today to vote “no” and say: I like a lot of this bill, but I want to continue to shackle women as they have babies? It is a pretty simple understanding. I get it. I want to see sentencing reform, too. I am on record as saying I do. I am on record as continuing past this to actually do that. This bill is real and meaningful reform. The President has said this is something that can be signed. In fact, the President, last week, said that America is a Nation that believes in second chances.

The FIRST STEP Act gives those second chances. It gives us hope. It gives us an ability to look at people. As I have said on this issue many times, it is a money and moral issue. In States like Georgia, Kentucky, Oklahoma, Texas, New York, and Cali- fornia, these issues have been discussed and evidence-based approaches have worked. We have seen it work in my home State of Georgia. This bill provides the protection, and it also provides the incentive for this to work.

Now, there have been many discussions on why we shouldn’t do this, and there have been many people in recent days coming forward. I think it is pretty amazing to me — and I am going to have to be honest here — for the former attorney general [in the Obama Administration, Eric Holder] to come out and say this is not enough and say that the current Department of Justice could do some of this. Then I have one question for the former attorney general: Where were you when you held the office? Why didn’t you do something then? If it was within your grasp, why did you turn a deaf ear to the cries of families who were in need? Why did you decide not to do something and now weigh and say it is not enough?

Look to those families, Mr. former attorney general, and tell them it is not enough. It is easy to write an op-ed. It must be a lot harder to do it when you have the job. So, as we look forward here, this is a positive piece of legislation. This is something that we can look forward to doing, when you have a chance to give those prisoners the oppor- tunity to cut the very things down in their life that cause them to get there to start with.

When we begin to look at the reasons they are there — and there are multiple — then we are taking a first step toward solutions, a first step toward hope, a first step toward making a difference so that maybe we can get some of our colleagues to take that next Continued on page 22

21Congressional Digest n www.CongressionalDigest.com n January 2019

Jayapal, continued from page 19

“. . . we have more

work to do to get

to the place where

our morals are

being consistently

applied.”

Continued on page 23

based upon citizenship status is a waste of taxpayer dollars and unnecessarily keeps families separated.

The reality is that these are deeply important issues, and this bill shows that we have the capacity to work in a bipartisan way.

Even with all the good work and even for a first step, unfortunately, I believe we have more work to do to get to the place where our morals are being consistently applied.

Honorable Sheila Jackson Lee United States Representative, Texas, Democrat

Representative Jackson Lee, of the Eighteenth District of Texas, was first elected to the U.S. House of Representatives in 1994. She served on the Houston City Council from 1990 to 1994. She sits on the Homeland Security Committee and the Judiciary Committee. The following is from the May 22, 2018, House floor debate on H.R. 5682, the FIRST STEP Act.

I too want to offer my appreciation for all of my colleagues — in particular, those who have offered this legislation. I recall, in the Congress preceding this, we offered a bi- partisan combination of comprehensive criminal justice reform, took bills that included prison reform and sentencing reform, and were on the way to passing that combination of very important partnership. Unfortunately, the politics of that time got in the way.

So let me give an open letter to the mothers and fathers of incarcerated persons who are in our constituency and, as well, to those inmates who may, by chance, be looking at this debate. Having recently visited one of the Federal centers, I know that inmates are astute and concerned about their future. So I think it is important to establish to those parents why Democrats have consistently tried to sew together, tried to stitch together the idea of sentencing reduction and prison reform.

Elements of this bill are striking and good. But to a mom, is it more exciting for you to know that your son, who had an excessive sentencing because of mandatory minimums, and you, who are incarcerated, have your sentence reduced than maybe on the back end?

Now, it is important to note that all of those, if this bill is passed, will participate in the rehabilitation programs, but it is also important to note that the Bureau of Pris- ons [BOP] has closed halfway houses. That is a component of this bill. And they have reduced and cut the numbers of individuals who are corrections officers to the extent that corrections officers feel endangered and that augmentation has been used.

Augmentation means that nurses and teachers and others who are inside the prison are being used to augment the staff of correction officers which have been fired — or terminated, rather — under this Administration. In a letter from the BOP union president, they indicated that they are severely understaffed and it would be difficult to implement this bill without those aspects being remedied — meaning more staff, more halfway houses, more money to implement this program.

So many of my friends have asked me: What is the harm? Let me give you what is the harm.

22 Congressional Digest n www.CongressionalDigest.com n January 2019

step into sentencing reform and other areas that we have already worked on and others across in the Senate have advocated for. But if we choose not to do that today, you are saying no to the future.

It is about what we can accomplish and how we can accomplish it in a way that is meaningful to others. When we look at this, I also find it rather interesting; the groups that have come together here. As we went around talking about this, we went to so many different groups from the left and the right that say this is a great first step: Justice Action Network, American Conservative Union, FreedomWorks, FAMM [Families Against Mandatory Minimums], Prison Fellowship, Faith and Freedom Coalition, #cut50, Her- itage Action for America, and many, many more both on the left and the right. The Koch Foundation and others have said this is good. This is something we can move on.

This provides that hope that we are searching for. To the bill’s detractors, I respect your opinion. To the bill’s detractors, I would just say: Why not? If why not, why not here? And if why not, when? Is it ever good enough? Can we ever get to a point? I think one of the things that we often deal with here is the art of the possible. Today is about the art of the possible.

We have an Administration that says: We will sign the bill. Jared Kushner has been such an advocate for this and worked with the administration to say: We will put forth the effort to make this work. We have partners in the Senate who say: We want to work and do even more. I am glad of that. Today is about action. Today is about being a part of something bigger than ourselves. This is a day when we can come to the floor of this House and be proud of why we are here. So many times we come down, and we look at the bill, and we see paper, and we see words on a paper. But I tell you what I see. I see the faces of the families behind these words that it is actually going to help.

So when you look at this vote and you look at this bill, I say: Look beyond the pieces of paper, look beyond the ink, and look to the families that will be helped. When you cast that “yes” vote, you are saying: I want to do something, and I am not afraid to wait on something I might want but know that I can take a step further now. It is very simple: Vote “yes” to move it along or vote “no” and say no to those in need. I can agree and disagree about a lot of parts, but this is about the people behind the bill.

You could come up with every reason you want to vote “no,” but remember, there are families watching today. There are incarcerated people watching today. Will you vote for them, or will you vote to hold up something that may or may not happen?

Honorable Hakeem Jeffries United States Representative, New York, Democrat

Representative Jeffries, of the Eighth District of New York, was first elected to the U.S. House of Representatives in 2012. He served in the New York State Assembly from 2007 to 2012. He sits on the Judiciary Committee and the Budget Committee. The following is from the May 22, 2018, House floor debate on H.R. 5682, the FIRST STEP Act.

I thank Chairman Goodlatte as well as several distinguished members of the Judiciary Committee for their leadership on this issue and, of course, my good friend Doug Col-

Collins, continued from page 20

“I think one of the

things that we often

deal with here is the

art of the possible.

Today is about the

art of the possible."

Continued on page 24

23Congressional Digest n www.CongressionalDigest.com n January 2019

First, it would divert limited resources for programming by requiring a complex risk assessment process that would primarily benefit people deemed at a low or minimum risk of recidivism. That means, if you came in with a harsh drug sentence but through the years, mom or dad, you saw your son or daughter fix their lives, you would note that they, in fact, would not be eligible for this program.

Without provisions in the bill to reduce the excessive sentencing produced by man- datory minimums for drug offenses, overcrowding will still persist and thereby divert resources from programs to reduce recidivism.

So it is a first step. But I would simply say: If it is the first step, why not protection of immigrants? And, also, why not have a sentencing reform hearing, which the Re- publicans have canceled because of my position on this bill? Let us work together for what is good. Let us make a difference in the lives of all of the inmates.

As the New York Times editorial noted, “the biggest problem with the FIRST STEP Act is … what’s left out, specifically, sentencing reform.” Eric Holder said in the Washington Post, “by choosing a tepid approach, the prison reform bill abandons years of work and risks making it harder for Congress to advance more serious legislation in the future. Meaningful sentencing reform will be less likely to occur if the narrow prison bill is enacted.”

Even President Trump specifically stated during his remarks at the White House Prison Reform Summit last Friday, “We want the finest prison reform bill that you could have anywhere.”

I agree with the President on this, as I also want the finest prison reform bill. Hence, I will continue to fight for the very best legislation that will adequately address the nearly 650,900 formerly incarcerated people that will return to our communities a year. That’s not partisan or personal politics, but rather, common sense, just and equitable politics.

Imagine you are a mother, child, or loved one of an incarcerated person that was robbed by a system that played Russian roulette with his or her life because that sys- tem decided they were criminals rather than victims of a public health crisis during the crack epidemic. Now imagine that same system, rather than remediating the tragedy it caused in broken homes and communities through inept policies that had a racial and economic disparate impact, now seeks to pat them on the back and further insult an entire race by feeding them crumbs.

As a mother or loved one, you would demand that the system cure the defect in those sentencing laws that would drastically reduce his or her time in custody and apply justice equitably.

Let’s not forget what happened in the 1964 crime bill [Violent Crime Control and Law Enforcement Act]. Congress has the power to do that. We should hold ourselves accountable to deliver on the promise we made when we acknowledged the draconian policies implemented during the “War on Drugs” crisis, in passing the Fair Sentencing Act [of 2010]. Let’s finish what we started then, by appealing to our better angels and not crucify each other because we disagree.

As Families Against Mandatory Minimums indicated in their letter, “Sentencing reform should be included in any final justice reform package.” Second, even if the ma- jority chose to ignore sentencing reform due to pressure, we cannot sit idly by and allow a slim-fast version of prison reform when dealing with the lives of millions of people.

I will not apologize for demanding more from my colleagues. I will not apologize for fighting with every breath I have to secure justice for those left behind. And I will

Jackson Lee, continued from page 21

“Without provisions

in the bill to reduce

the excessive

sentencing

produced by

mandatory

minimums for

drug offenses,

overcrowding will

still persist . . .”

Continued on page 25

24 Congressional Digest n www.CongressionalDigest.com n January 2019

lins for being a phenomenal champion of improving the lives of currently incarcerated individuals, folks who have no time for political games.

These are individuals who are in the system right now without hope, without oppor- tunity, without a meaningful chance at transforming themselves. And the FIRST STEP Act will provide that. It will give them an opportunity to get educated now, give them an opportunity to get vocational training now, a GED [General Education Development credential] now, a college education now, give them the opportunity to deal with their substance abuse problem now, mental health counseling now.

Why would we possibly refuse that? These individuals are amongst the least, the lost, and the left behind. And we have an opportunity, in a bipartisan way, to make a difference in their lives in so many areas.

Any objective reading of this bill is that it will improve their quality of life. And what is so wonderful about this is that you have the right and the left, conservatives and progressives, united in this effort. Nothing meaningful is ever easy, but the mass incarceration epidemic has been with us for almost 50 years. You will not just take one legislative magic wand and wipe it away in one shot. It will require sustained effort, sustained intensity, sustained commitment, and a meaningful first step.

I urge all of my colleagues to support this effort to transform lives, save taxpayer dollars, and dramatically reduce recidivism now.

#cut50 Van Jones, President and Cofounder #cut50, an initiative of The Dream Corps, works to cut crime and incarceration in all 50 States. It is a national bipartisan effort to reduce the number of people in prisons and jails while making communities safer. The Dream Corps supports cutting-edge economic, environmental, and criminal justice innovators. Van Jones is the founder of The Dream Corps, Rebuild The Dream, Green For All, the Ella Baker Center for Human Rights, and Color of Change. In 2009, he worked as the green jobs advisor to President Barack Obama. The following is from a May 16, 2018, letter to Congress in support of H.R. 5682, the FIRST STEP Act, signed by 70 supporting organizations.

This letter is written on behalf of #cut50 and more than 70 other organizations and individuals who support the FIRST STEP Act, which would improve the condition and opportunities for incarcerated individuals, reduce the risk of recidivism upon release from prison, and promote public safety.

We envision a criminal justice system that recognizes the humanity of the 2.2 million people currently behind bars in America and moves toward compassion and treatment rather than punishment and incarceration. H.R. 5682 falls in line with our mission by improving the conditions for incarcerated individuals, reducing the amount of time people spend in prison, and provide meaningful opportunities to successfully transition into their communities.

The authors have worked together with groups of advocates, fellow Members of Congress, and heard directly from formerly incarcerated individuals with lived expe-

Jeffries, continued from page 22

Continued on page 26

“We envision a

criminal justice

system that

recognizes the

humanity of the

2.2 mllion people

currently behind

bars . . .”

25Congressional Digest n www.CongressionalDigest.com n January 2019

not apologize for doing my job and shedding light where we may fall short, even when we have in good faith, tried our best.

We will all go home tonight. What about those that have longed for that same freedom after they’ve paid their debts to society? We owe it to ourselves, to the thou- sands of broken families, and to our society, to give each inmate that will return to our community their best chance at success by providing them incentives that will get them home to their families sooner also.

Even the bill’s supporters at markup said in their letter, “We fear that the bill’s failure to direct incentivized programming to the group that needs it most will result in little or no reduction in recidivism, and, worse, that that failure will be blamed on prisoners rather than the bill’s mistaken design.”

Most alarming here is that great skepticism looms even in those who want to support this endeavor, because the reality is that the risk assessment tool is flawed. This [Jared] Kushner [the President’s son-in-law and advisor]/Trump bill amounts to nothing more than a false sense of hope for those who will never be released, due to either lack of shelter, given the significant reduction in housing, or lack of eligibility per the warden.

The wide latitude and discretion given to [then Attorney General Jeff] Sessions, a person who whole-heartedly opposes any form of effective criminal justice reform, and proponent of over-criminalization, will inevitably prove problematic for many who otherwise would benefit greatly from this measure with some modicum of oversight.

We should take our time to include an independent committee that would serve as a bulwark in the development, implementation, and recommendation process of such a program that will use novice and untested tools at the Federal level. Why must we rush this process? Why not take our time to produce the finest prison reform bill anywhere as the President suggested?

I visited and spoke directly to guards and wardens in the BOP. They told me they are severely understaffed and safety is paramount given the shortage in staff. The director of BOP quit, in the middle of Trump’s Prison Reform Summit. All of these facts tell us to wait so that we could get it right.

In NOBLE’s [National Organization of Black Law Enforcement Executives] oppo- sition letter to this bill they write: “A key concern is the ability of the Federal BOP and U.S. attorney offices to implement key elements of this legislation. In particular, it will require that U.S. attorney offices and BOP address their needs in staffing and funding. It is our opinion that the proposed $50 million of funding per year for five years will not support the bill’s expanded programming.”

For these reasons I oppose this bill, and I encourage my colleagues to do the same. The act does not include a single provision that will reduce the prison time of persons who are serving unfair sentences for low-level offenses. Even supporters of the bill like FAMM [Families Against Mandatory Minimums] states, “Sentencing reform should be included in any final justice reform package.”

The act uses an untested and potentially racially and socially discriminatory risk as- sessment to identify individuals who are eligible to earn credits, which primarily depends on static factors that correlate with socioeconomic class and race, such as criminal history, to assess the risk. Therefore, it will likely fail to reduce crime or mass incarceration.

The act’s exclusions would likely have a disparate impact on racial minorities because the bill excludes individuals convicted of certain categories of offenses from redeeming credits towards early release, even if they successfully complete the program.

Jackson Lee, continued from page 23

Continued on page 27

“The act does not

include a single

provision that will

reduce the prison

time of persons who

are serving unfair

sentences for low-

level offenses.”

26 Congressional Digest n www.CongressionalDigest.com n January 2019

riences through the Federal prison system. We are also encouraged by strong support from both Republicans and Democrats as this bill passed out of the House Judiciary Committee on May 9, 2018.

In 2015, three out of 10 Federal prisoners and six out of 10 State prisoners re- leased to a term of community supervision returned to prison within five years. Far too many struggle with unemployment, housing instability, and substance addiction when they come home. Many have difficulty overcoming the trauma they experienced during their incarceration and reestablishing ties to family and community that were damaged by their incarceration. We strongly believe that the provisions of H.R. 5682 will lead to better outcomes for individuals reintegrating back into their communities. Establishing a system that provides guidance and intensity of evidenced-based recid- ivism reduction programming will provide the necessary resources for individuals to prepare for release.

This bill works to improve the lives of the incarcerated men and women, their children, and their families by:

Reducing the Number of People Incarcerated in Federal Prisons This bill will immediately make over 4,000 people in Federal prison eligible for early release — by fixing a good time credit calculation retroactively. Men and women in incarcerated Federal prison will earn nearly eight weeks (54 days) per year off of their sentence for good time. Thousands more will soon become eligible to move from Bu- reau of Prisons facilities into home detention as a result of the expansion of the elderly prisoner pilot program — which gives people 60 years or older who have served more than two-thirds of their sentence an opportunity to serve the remainder of their sentence on home confinement.

The bill will expand the capacity of prison programming to ensure that individuals inside can benefit from counseling, drug treatment, training, and education. By par- ticipating in programming, individuals will earn credits (at a rate of 10 days for every 30 of participating in programming) that allow them to shorten the amount of time they spend in prison and release back to their communities and families sooner — via expanded use of home confinement. It provides a pathway to prerelease for even those deemed “high” or “medium” risk.

Increasing Opportunities for Programming and Work Within the Walls Currently, there is a significant lack of programming inside the Federal prisons. H.R. 5682 authorizes $50,000,000 each year for Fiscal Year 2019 through 2023 (quarter of a billion), which can be used for programming. This bill also allows more outside nonprofits, volunteers, and faith-based groups to go into Federal prisons to provide programming. These volunteers will not only provide critical programming, but also will serve as mentors to those inside and be a valuable asset in changing the culture within the institutions and bringing hope and compassion to those inside.

The bill also expands work programs so that those inside have an opportunity to work and save money in escrow accounts that they can use as they return home to get back on their feet. H.R. 5682 also creates an ID program so that men and women returning to society have identification necessary to gain benefits, housing, and employment.

#cut50, continued from page 24

Continued on page 28

“The bill will expand

the capacity of

prison programming

to ensure that

individuals inside

can benefit from

counseling, drug

treatment, training,

and education.”

27Congressional Digest n www.CongressionalDigest.com n January 2019

The act leaves it to the discretion of prison wardens to determine who can use their credits and when. Early release would be into a halfway house system which is so underfunded that there is no bed space. Therefore, it will be unlikely that prisoners can truly be released given the reality of the current halfway house system.

The act gives a false sense of hope because it wraps the empty promise of prison reform around exclusions and wide breadth of discretion to a full-throated opponent to prison reform, policing reform, and sentencing reform, in Jeff Sessions.

BOP already has broad authority to implement the positive provisions of the bill, but has opted not to, and Sessions cannot be trusted to implement these provisions.

The FIRST STEP Act includes a list of prisoners who are ineligible for time credits if they participate in recidivism reduction programs by virtue of their convictions for certain offenses. Prisoners who are excluded from time credits are those convicted under Title 18.

Finally, prisoners may not obtain credit for participation in recidivism reduction programs if they: (1) completed recidivism reduction programming before enactment of the act; (2) completed recidivism reduction programming during official detention before moving to Bureau of Prisons; or (3) are inadmissible or deportable under im- migration law.

Leadership Conference on Civil Rights Vanita Gupta, President and CEO

Formed in 1950 with 30 organizations, mostly civil rights and labor groups, the Leadership Conference has grown in numbers, scope, and effectiveness to include more than 200 national coalition members. Vanita Gupta served from 2014 to 2017 as Principal Deputy Assistant Attorney General and head of the U.S. Department of Justice’s Civil Rights Division. Prior to that, she was Deputy Legal Director and the Director of the Center for Justice at the American Civil Liberties Union. The following is from a May 8, 2018, letter to the House Judiciary Committee opposing H.R. 5682, the FIRST STEP Act.

On behalf of The Leadership Conference on Civil and Human Rights and the 74 un- dersigned organizations, we urge you to vote “No” on the FIRST STEP Act that will be considered during the mark-up. Any effort to pass prison reform (or “back-end” reform) legislation without including sentencing reform (or “front-end” reform) will not meaningfully improve the Federal system.

Across the country, States that have enacted legislation containing both front- and back-end reforms have reduced rates of incarceration and crime. Any legislation that addresses only back-end reforms is doomed to fail in achieving these goals. Without changes to sentencing laws that eliminate mandatory minimums, restore judicial dis- cretion, reduce the national prison population, and mitigate disparate impacts on com- munities of color, the FIRST STEP Act alone will have little impact. The Leadership Conference on Civil and Human Rights plans to include your position on the FIRST STEP Act in our voting scorecard for the 115th Congress.

Jackson Lee, continued from page 25

Continued on page 29

“Early release

would be into a

halfway house

system which is

so underfunded

that there is no

bed space.”

28 Congressional Digest n www.CongressionalDigest.com n January 2019

Protecting Women and Facilitating Family Connections Currently, men and women can be housed thousands of miles away from their loved ones, left with little opportunity to maintain familial relationships that are critical to both their well-being while inside and successful reentry. H.R. 5682 will require that people living in Federal prisons be housed within 500 driving miles of their families. Allowing individuals to serve their sentences in facilities closer to their family support system maintains a healthy bond and strong ties to the community.

In the last two decades, the women’s prison population has risen by 700 percent. Our prisons and policies were not designed to meet women’s needs, and the result has been a system that traumatizes and endangers women.

The FIRST STEP Act will end the shackling of women in labor and post-partum. Shackling pregnant women is dangerous and inhumane. The shackling of pregnant women endangers the lives of the mother and fetus. H.R. 5682 sends a clear message of responsibility for the health and safety of both the mother and the fetus during pregnancy by banning the use of shackles. It will also provide hygiene items to women in prison at no charge and expand phone and visitation time that are vital to the rehabilitation process and to allowing the 80 percent of women who are mothers in prison stay connected to their children. The bill also contains a fix to Prison Rape Elimination Act, which will improve how the audits of prison rape incidents are conducted.

Meaningful Oversight to Help Ensure Proper Implementation H.R. 5682 will also place additional layers of accountability and oversight within the Federal Bureau of Prisons. Additionally, there will be an annual accountability report to ensure that the risk assessment tool is being administered in an unbiased way. This is crucial as we continue to face vast racial disparities that negatively impact African American and Latino communities.

These are meaningful reforms. This is our best chance to pass this bill into law and dramatically change the lives of people inside — and expand accountability and oversight of the Federal prison system.

The passage of H.R. 5682 will truly be the first step towards further progress that we hope will eventually include sentencing reform. #cut50, on behalf of the under- signed organizations and individuals, respectfully urge you to schedule a vote on this legislation and vote yes in support.

#cut50, continued from page 26

“The FIRST STEP

Act will end the

shackling of women

in labor and

post-partum.”

29Congressional Digest n www.CongressionalDigest.com n January 2019

Moreover, proposals referred to by the White House and others as “prison reform,” including the FIRST STEP Act, would do little to reform prisons or the Federal justice system. The FIRST STEP Act attempts to allow people to participate in reentry and rehabilitation programs and earn time credits that would permit them to serve the end of their prison sentence in home confinement or halfway houses. However, currently there are not enough of these programs available in the Federal Bureau of Prisons (BOP) to serve those currently in prisons. Furthermore, BOP more recently has reduced the number of residential reentry centers it contracts with to provide halfway house programming.

In addition, many people would not be eligible to earn credits by participating in rehabilitation or reentry programs merely based on their criminal convictions. Even if a person is deemed eligible to participate in BOP programming based on the required risk and needs assessment system, after participating in programming, the BOP warden could deny the transfer of prisoners to a halfway house or home confinement if they find “by clear and convincing evidence that the prisoner should not be transferred into prerelease custody based on evidence of the prisoner’s actions after the conviction of such prisoner” and provides “a detailed written statement regarding such finding.”

The Federal criminal justice system is deeply flawed and needs to adopt a top-to- bottom overhaul. The FIRST STEP Act alone does not come close to achieving the desperately needed reforms to create a fair and just system.

It is important to note that while reforms to address back-end drivers of our prison system are needed, they cannot function as a substitute for front-end sentencing reform. Only front-end reforms have the power to significantly stem the tide of incarceration, reduce the exorbitant cost of the prison system, and give redress to those inside who are serving sentences that are disproportionate to the severity of the offense. Any approach that does not include sentencing reform will be insufficient to meet the challenges we face. Our continued progress toward meeting the economic and societal challenges posed by the current system and establishing a fair and more just system depends on a comprehensive approach to reform.

It is up to Congress to continue to advance front-end and back-end reform designed to improve both Federal sentencing laws and the functioning of the Federal prison system. If Congress is serious about addressing meaningful prison reform, it will pass legislation that would deal with the conditions of confinement such as reducing the use of solitary confinement, providing adequate medical care to prisoners, and addressing exorbitant prison phone rates.

While we appreciate the inclusion of some promising provisions in the introduced bill, such as prohibitions on the shackling of pregnant women, reforms to the Feder- al compassionate and elderly release programs, and an audit of the program several years after its implementation, these changes are not significant enough to overcome our primary concerns with the bill and many could be adopted administratively by the Bureau of Prisons. Furthermore, we remain concerned that the challenges and solutions to reforming our Federal prison system have not been fully explored by this committee and that no hearings have been held in order to give due consideration to the FIRST STEP Act in particular.

Leadership Conference, continued from page 27

“The FIRST STEP

Act alone does

not come close

to achieving the

desperately needed

reforms to create

a fair and just

system.”

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